On September 6, 2019, the NLRB (Board) issued the decision, Kroger Limited Partnership I Mid-Atlantic and United Food and Commercial Workers Union 400 (Kroger decision), which overruled Sandusky Mall Co., and limited the right of nonemployee union agents to access employer property for the purpose of union solicitations. The 3-1 decision, split along party lines, is the latest Board action in a string of pronouncements that restrict union expressive activity. Prior Board actions include the decision in UMPC and its Subsidiary UMPC Presbyterian Shadyside, which restricts nonemployee union organization solicitations in public areas on the employer’s property, and the recent GC advice memo issued on December 20, 2018 that we discussed here relating to restrictions on the use of banners and inflatables in secondary boycott activities. The decisions signal a continued shift in the Board’s interpretation of the scope of protected activity under the National Labor Relations Act (Act).

Union solicits Kroger customers to boycott store

 Kroger operated a retail grocery store, number 538, located in Virginia that previously had entered into a collective bargaining agreement with the United Food and Commercial Workers Union 400 (Union). In late 2014, Kroger opened two new Kroger stores that were not union shops within a short distance of the Kroger 538 store. The Kroger 538 store was subsequently slated for closure, and its employees were offered the option of transferring to other unionized Kroger stores, but not the closer, non-union, new Kroger locations. In response, the Union representative began soliciting customers in the Kroger 538 parking lot to boycott the new Kroger locations and to sign petitions to protest Kroger’s decision to transfer its Kroger 538 employees to only more distant, unionized locations. Kroger subsequently contacted the police who ordered the Union agent to leave the parking lot. The Union filed an unfair labor practice charge alleging discriminatory denial of access to private property and enforcement of a no solicitation policy.

With regard to Kroger’s policies and practices related to solicitations at the Kroger 538 property, the ALJ made the following relevant findings:

  • Kroger did not have a written policy regarding solicitation requests by nonemployees on the Kroger 538 property.
  • Kroger’s lease of the property contained a no solicitation/no loitering provision which prohibited all soliciting, handbilling, picketing and loitering activities in the parking and common areas of the store.
  • The lease provisions authorized Kroger to treat all persons engaging in such activities as trespassers.
  • As a past practice, Kroger had authorized nonemployee solicitation requests on an individual basis. It had approved nonemployee solicitation requests at the Kroger 538 property from certain entities, such as the Girl Scouts, the Lions Club, the Salvation Army, the American Red Cross, and the local fire department. At least one request from a nonemployee, non-union, religious organization was denied.
  • A March 2014 letter from the landlord “targeted unions and other groups” seeking to protest, handbill, picket or engage in other disruptive activities on the premises.

The ALJ concluded that:

  • The Union agent had engaged in protected activity under the Act by soliciting Kroger customers on Kroger’s parking lot; and
  • Kroger had violated §8(a)(1) of the Act by excluding union solicitations on Kroger property “while at the same time favoring and permitting charitable and civic solicitation activity.”

The majority of the Board disagreed with the ALJ’s decision and dismissed the Union’s complaint.

 NLRB expands employers’ right to bar union solicitations on private property

 In reaching its decision, the Board significantly narrowed the circumstances under which a union has a statutory right under the National Labor Relations Act (Act) to access an employer’s property for the purpose of soliciting customers or patrons of the employer. The majority held that an employer need only permit access to the employer’s property by nonemployee union agents if the employer permits other nonemployee, nonunion organizations to engage in activities “similar in nature to those the union seeks to engage.” The decision necessitates consideration of not only the conduct (solicitations), but also the content of the solicitations (protests and boycotts). The majority decision overrules established Board precedent.

The decision demonstrates a shift in the Board’s view of the proper balance between protecting employers’ property rights and a union’s statutory right to access an employer’s property to exercise §7 rights. While an employer has a right to exclude non-employees from the employer’s private property, the U.S. Supreme Court in NLRB v. Babcock and Wilcox, Inc., held that it’s a violation of the Act to discriminate against unions by excluding unions from the employer’s property while allowing “other distribution.” The 1999 Board decision, Sandusky Mall Co., interpreted the Babcock discrimination exception to require employers to permit union access to the employer’s property if the employer permits other nonemployee charitable, civic, or promotional activities on the employer’s property. The majority, however, described Sandusky as being “roundly rejected by the courts of appeals,” and as having “stretched the concept of discrimination well beyond its accepted meaning” in a manner that is unsupported by Supreme Court precedent or the Act.

Instead, the majority views the scope of the discrimination exception as narrow and asserted that restrictions on an employer’s right to deny access to their property by nonemployee union agents are proper only in limited circumstances. Significantly, the Board rejected as “too narrow,” the 2nd and 6th Circuit Courts of Appeals decisions that limit the Babcock discrimination exception to circumstances in which one union is favored over another, or in which employer related information is permitted to be communicated while union related information is excluded, or in which nonemployees who seek to communicate on a subject protected by §7 of the Act are treated dissimilarly. Rather, discriminatory denial of access to an employer’s property exists only if the nonemployee activities permitted are similar in nature to the nonemployee union activities that are not permitted. Further, protest and boycott activities, which urge customers not to patronize the business and are against the business interest of the employer are not similar to charitable, civic and commercial activities.  The Board’s decision will be retroactively applied to all pending cases.

What does this mean for employers?

 The Kroger decision reflects the continued trend by the Board to expand the employer’s right to deny access to its property by nonemployee union agents. The decision also provides insight into the Board’s plans regarding the development of a new standard related to access to an employer’s private property as announced in the May 22, 2019 unified agenda.

Additionally, the Kroger decision paves the way for the Board to reconsider its decisions related to off-duty employee access policies that require employers to choose between a zero tolerance off-duty access policy and a policy that grants workers access without restrictions. In 2012, the lone Republican Board member dissented from several majority decisions that required employers’ policies to prohibit all off-duty employee access in order to control access to the premises by off-duty employees. Similar to the analysis in the Kroger decision, the dissenting Board member criticized the then majority holdings as upsetting the “balance between an employer’s right to control its property and an employee’s right to engage in §7 protected activity.”

As a result of the Kroger decision, employers and managers should undertake the following actions:

  • Develop a written solicitation and distribution policy related to access of the employer’s property by nonemployees, including identification of the types of activities that will be allowed by nonemployees on the employer’s property;
  • Consistently apply the solicitation and distribution policy to solicitation requests by nonemployees; and
  • Provide training to management regarding the new labor rules relating to solicitations by nonemployee groups as well as the employer’s solicitation and distribution policy.

The Kroger decision relating to union solicitations and handbilling as well as the General Counsel’s advice memo which seeks to overturn prior decisions relating to the union’s use of banners and inflatables evidence the Board’s intent to reverse union friendly decisions and to narrow the circumstances under which union expressive activity is allowed to encroach upon employers’ business premises.

 

Tracey Oakes O’Brien is a contributing author of this content.